Michael Gilman v Ups Ltd and Another
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Stephen Davies |
| Judgment Date | 30 July 2013 |
| Neutral Citation | [2013] EWHC 2341 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 30 July 2013 |
| Docket Number | Case No: 2MA50084 |
[2013] EWHC 2341 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
TECHONOLOGY AND CONSTRUCTION COURT
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
His Honour Judge Stephen Davies
Sitting as a Judge of the High Court
Case No: 2MA50084
Andrew Prynne QC & Fiona Canby (instructed by Keoghs LLP Solicitors, Bolton) for the Claimant
Nigel Wilkinson QC & William Hoskins (instructed by Clyde & Co LLP Solicitors, London) for the First Defendant
David Drake (instructed by Hay & Kilner Solicitors, Newcastle) for the Second Defendant
Hearing dates: 2–4, 9–10 July 2013
| A Introduction | ¶¶ 1 — 7 |
| B The witnesses | ¶¶ 8—43 |
| C The facts | ¶¶ 44 — 106 |
| D The claimant's application to re-amend the Particulars of Claim | ¶¶ 107 — 116 |
| E The claimant's claim against UPS | ¶¶ 117 — 135 |
| F The claimant's claim against Network Rail | ¶¶ 136 —158 |
| G The assessment of an appropriate contribution | ¶ 159 |
| H Network Rail's claim over against UPS under the Licence | ¶¶160 —161 |
| I Network Rail's counterclaim against the claimant | ¶ 162 |
| J Quantum issues in relation to the claimant's claim | ¶¶ 163 — 176 |
| K Conclusions | ¶ 177 |
A. INTRODUCTION
The claimant, Mr Gilman, brings this claim at the behest of his insurers seeking contribution under the Civil Liability (Contribution) Act 1978 ["the 1978 Act"] against the defendants, UPS Limited ["UPS"] and Network Rail Infrastructure Limited ["Network Rail"]. His insurers are seeking to recover some of the outlay they incurred in settling claims brought against Mr Gilman by various parties as a consequence of collisions occurring at around 6:00pm on 18 December 2008 on the West Coast main railway line in North Rode just north of Congleton in Cheshire involving Mr Gilman's motor vehicle and two trains. Mr Gilman's vehicle rolled down from where it had been left parked in the yard of the parcel depot operated by UPS adjacent to the railway line, broke through a post and wire fence on the boundary, and rolled on down the railway cutting onto the railway line itself, where it came into collision with a Northern Rail train travelling southbound on that line. Minutes later what remained of the claimant's vehicle came into collision with a Cross Country train travelling northbound. Network Rail seeks by way of counterclaim to recover its losses arising out of these collisions against Mr Gilman.
The causes of Mr Gilman's vehicle rolling from its parked position in the depot yard down onto the railway line is the subject matter of this case. In particular, what I have to decide is whether, and if so to what extent, the collisions were caused or contributed to by any negligence on the part of UPS and/or Network Rail. Before I embark on that process I should like to refer to three matters.
First, it is a matter of extreme good fortune that the collisions did not have catastrophic consequences. Although both trains were travelling at some speed and, indeed the first train was derailed as a result of the impact with Mr Gilman's vehicle, no-one suffered more than minor injuries in the two collisions. As has been said if, after derailing, the first train had turned over or swerved in front of the second train, as could quite easily have happened, the consequences could have been horrific. In the event, the total settlement value paid by Mr Gilman's insurers in respect of all claims amounted to only £1,464,533, inclusive of all costs, but exclusive of interest, and the total Network Rail claim (as agreed subject to liability) amounts to only £545,000 plus interest.
Thus this incident was nowhere near as serious as the tragic accident which occurred in 2001 at Great Heck, near Selby, in Yorkshire, in which a vehicle left the M62 motorway and obstructed the East Coast main railway line, causing a serious train accident in which 10 people lost their lives and many others were injured. That accident is particularly relevant to this case because following Great Heck the Health and Safety Commission ["HSC"] was asked to and did set up a working group to look at the circumstances where road vehicles blocked railway lines and whether there were features in common that might have been preventable. Their subsequent report dated February 2002 ["the HSC report"] made a number of recommendations, which led amongst other things to a series of working groups being set up by the Department for Transport ["DfT"], which subsequently produced a report, in February 2003, entitled "Managing the accidental obstruction of the railway by road vehicles" ["the DfT report"]. That report set out the steps which it considered should be taken by rail infrastructure and highways authorities to manage that risk.
The question as to the adequacy of Network Rail's response to the Great Heck incident and those subsequent reports, as regards taking steps to minimise the risk of such incidents from vehicles on private land as opposed to public roads, is an important matter which arises for consideration in this case.
Second, I wish to say something about Mr Gilman. He accepted in evidence his responsibility for his vehicle rolling onto the railway line. The evidence also shows that once he realised that his vehicle had rolled away, he acted with some courage and at great personal risk to himself in following the vehicle in the dark down to the railway line and in getting into it in a fruitless attempt to move it off the line before a train could strike it. It is appropriate that I should record therefore that although his negligence was undoubtedly a substantial cause of the incident it was, I am satisfied, an isolated, fleeting error, and that he did his best to make amends for that error in the minutes preceding the trains coming into collision with his vehicle.
Third, whilst liability is fully in issue in this case, in relation to quantum the parties have very sensibly agreed most of the issues subject to liability. Those which remain in issue are few in number and do not require any significant factual investigation. For this reason, coupled with the extremely efficient and able conduct of the trial by all parties, the trial took significantly less time than that estimated, which is always a happy state of affairs. On day 1 I had the case opened by Mr Prynne QC and Ms Canby by reference to the most important documents, viewed the record of the CCTV recording of the yard at the time of the incident, and visited the site. On days 2 and 3 I heard all of the oral evidence and received a number of written statements. During a 2 day break I was provided with closing written submissions and on days 4 and 5 I received closing oral submissions from all parties. I then adjourned to produce this judgment in writing.
B. THE WITNESSES
I refer first to the witnesses who gave live evidence, in the order they were called.
Mr Gilman
Mr Gilman is a self-employed mechanic who was visiting UPS' depot on business on the day in question, according to him for the first time. He was an honest witness, who did his best to give his genuine recollection of events, which I accept as generally reliable. He clearly has no positive recollection whether or not he left his vehicle properly immobilised. He instinctively believes that he did but, as he frankly accepted under cross-examination, it is clear from the circumstances of the accident that he did not do so. I set out my findings about what he actually did below, when I turn to address the facts.
Dr Walker
Dr Deborah Walker is an Inspector of Health & Safety employed by the Health & Safety Executive ["HSE"]. She gave evidence about her involvement in relation to the implementation of the recommendations in the post-accident Rail Accident Investigation Branch ["RAIB"] rail accident investigation and report ["RAIB report"], insofar as they related to UPS. She was plainly an honest and reliable witness, who was able to produce her contemporaneous notes and photographs to confirm her recollection of events.
Mr Stanway
Mr Simon Stanway worked as a sub-contractor to UPS at the time of the incident, when he was working in the yard at the depot. He made a statement to the British Transport Police and subsequently made a statement to UPS' solicitor. There were some significant differences between them, most relevantly to this case about whether he was aware of previous instances when vehicles had been left in the yard without brakes being applied and had rolled as a result. In his police statement he had said that he had been a witness to a number of such previous "rolling" incidents, whereas in his statement to UPS' solicitor he had said that he had no recollection of any such events. In the run-up to trial UPS' solicitors had notified the claimant's solicitors that UPS did not intend to call Mr Stanway, which led to the claimant's solicitors serving a witness summons upon him. Both Mr Prynne QC and Mr Wilkinson QC were agreed that in order to prevent one or the other being constrained in their examination of Mr Stanway he should be called as a witness by the court, a request to which I acceded. When he attended court he explained that due to his suffering from a post-traumatic stress disorder for the last 2 1/2 years or so he had no independent recollection of matters in question and, indeed, had no recollection of having given a statement to UPS, although he was able to identify UPS' solicitor.
He was taken by Mr Prynne through the police statement, which contained the usual declaration as to the maker's knowledge of the consequences of making a false statement. He confirmed that he had made a number of material alterations to it...
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Table of cases
...v Berger & Co Inc [1984] aC 382 II.9.131 Gillespie Bros & Co Ltd v roy Bowles Transport Ltd [1973] QB 400 II.13.192 Gilman v UpS Ltd [2013] EWhC 2341 (TCC) II.13.245, II.13.253 Gimpex Ltd v Unity holdings Business Ltd [2015] SGCa 08 III.26.117 Ginos & associates pty Ltd v accordent pty Ltd ......
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Damages
...Engineers [2002] BLr 64 at 80 [121]–[123], per henry LJ; Mouchel Ltd v Van Oord (UK) Ltd (No 2) [2011] BLr 492; Gilman v UPS Ltd [2013] EWhC 2341 (TCC) at [171]–[173], per hhJ Stephen Davies; Governor and Company of the Bank of Ireland at [257]–[260]; Chief Constable of Hampshire Constabula......